COURT OF APPEALS OF VIRGINIA
Present: Judges Kelsey, Haley and Petty
Argued at Salem, Virginia
SCOTT R. BRANDAU
OPINION BY
v. Record No. 2723-07-3 JUDGE D. ARTHUR KELSEY
SEPTEMBER 16, 2008
CAROL J. BRANDAU
FROM THE CIRCUIT COURT OF PULASKI COUNTY
Robert M.D. Turk, Judge
Frank W. Rogers, III (Mundy, Rogers & Associates, LLP, on
brief), for appellant.
John S. Huntington for appellee.
Scott R. Brandau appeals a final divorce decree arguing that the trial court erroneously
calculated a spousal support award to his former wife. The calculation was flawed, husband
contends, because it failed to impute income to wife and rested on an inflated estimate of his
income. Finding neither assertion persuasive, we affirm.
I.
When reviewing a trial court’s decision on appeal, “we view the evidence in the light
most favorable to the prevailing party, granting it the benefit of any reasonable inferences.”
Smith v. Smith, 43 Va. App. 279, 282, 597 S.E.2d 250, 252 (2004) (quoting Congdon v.
Congdon, 40 Va. App. 255, 258, 578 S.E.2d 833, 835 (2003) (citations omitted)). “That
principle requires us to discard the evidence of the appellant which conflicts, either directly or
inferentially, with the evidence presented by the appellee at trial.” Petry v. Petry, 41 Va. App.
782, 786, 589 S.E.2d 458, 460 (2003) (citation omitted).
After 22 years of marriage, husband left his wife. Their son, the younger of two children,
was in his senior year of high school. An older child was in college.
Husband is a self-employed optometrist with substantial earnings. Wife has not worked
outside the home during the marriage, with the sole exception of a brief, part-time effort at
assisting husband at his office. Wife has only a high school degree. She is not computer literate
and has no specific vocational training. Wife suffers from dilated cardiomyopathy as well as
other associated heart conditions (left ventricular dysfunction, chronic diastolic dysfunction, and
ventricular tachycardia). Over the years, wife has had four pacemaker-defibrillators implanted in
her chest designed to intervene during potentially lethal disruptions of her heart rate. She often
becomes highly fatigued and has unexpectedly passed out from her heart condition. Added to
these problems, wife suffers from hypothyroidism.
At trial, wife testified that she and husband agreed that she would be a stay-at-home
mother to their two children. It was a “family decision,” she said, for her “to fulfill the role of
homemaker and mother.” “I was going to be at home with our children,” she testified, pursuant
to their joint decision. She thought it particularly important to be home with her younger son
prior to sending him off to college. “That is my full-time job,” she explained.
Husband relied at trial on a vocational expert who opined that wife’s present physical and
vocational capacities suggest she could get a light or sedentary job earning about $14,500 a year
with an average hourly wage between $6.00 to $8.00. An expert for wife agreed that, in
principle, she was employable “but at risk” and could be reasonably expected to find only
low-wage, low-stress positions (around the $13,000-a-year range) given her medical condition,
lack of vocational training or higher education, inability to use computer technologies, and long
absence from the job market.
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On the question whether to impute income to wife for spousal support purposes, the trial
court ruled it would not do so “at this time.” In addition to noting wife’s health issues, the court
took into account “the understanding that Dr. Brandau would work and be the breadwinner while
Mrs. Brandau would stay at home and take care of the family needs.”
Another issue debated at trial was the proper computation of husband’s income from his
subchapter S corporation. An accountant for wife examined the corporation’s financial records
and concluded that husband made about $190,000 a year. Husband’s accounting expert testified
the better figure was $140,000 a year.
One of the differences between the two figures involved an adjustment for an item called
“Wages Paid to Children.” Husband gave monetary gifts to his children. Instead of giving the
money outright, however, he listed his two children as “employees” of the corporation and their
gifts as “salary.” By doing so, these salaries served as ostensible business expenses on the
corporation’s financial statements and income tax returns. At trial, husband’s accounting expert
conceded that such practices “appear to be inappropriate” and should be ignored for purposes of
calculating husband’s true income. After considering all the evidence, the trial court accepted
the $190,000 income calculation offered by wife’s accounting expert and based husband’s
spousal support obligation upon that finding.
Pursuant to Code § 20-91(A)(6), the trial court awarded wife a final divorce decree based
on evidence that husband “willfully deserted” the marriage. The court found the “circumstances
and factors which contributed to the dissolution of the marriage,” Code § 20-107.1(E), warranted
a support award to wife. The court calculated that award by reviewing the evidence in light of
the statutory factors listed in Code § 20-107.1(E). The final decree included the caveat that, at
some later date, the “support award may be modified upon either party’s showing of a material
change in circumstances.”
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II.
A. IMPUTATION OF INCOME
Husband argues that the trial court erred as a matter of law in failing to impute income to
wife given the “uncontested” evidence of her earning capacity of at least $13,000. Underlying
husband’s argument is the presupposition that, absent exceptional circumstances, every stay-at-
home spouse seeking spousal support must start work outside the home immediately upon the
entry of the divorce decree if he or she has any provable income earning capacity. We find no
basis for such an inflexible principle in our statutes or caselaw.
In Virginia, when “a claim for support is made by a party who has been held blameless
for the marital breach, the law imposes upon the other party a duty, within the limits of his or her
financial ability, to maintain the blameless party according to the station in life to which that
party was accustomed during the marriage.” Gamble v. Gamble, 14 Va. App. 558, 573-74, 421
S.E.2d 635, 644 (1992); see also Lapidus v. Lapidus, 226 Va. 575, 581, 311 S.E.2d 786, 789
(1984); Butler v. Butler, 217 Va. 195, 197, 227 S.E.2d 688, 690 (1976); Stubblebine v.
Stubblebine, 22 Va. App. 703, 710, 473 S.E.2d 72, 75 (1996) (en banc); Furr v. Furr, 13
Va. App. 479, 483-84, 413 S.E.2d 72, 75 (1992). This principle recognizes that, assuming Code
§ 20-107.1(B) does not otherwise bar spousal support, 1 “determining whether to award support
and maintenance for a spouse” still requires judicial consideration of the “circumstances and
factors which contributed to the dissolution of the marriage . . . .” Code § 20-107.1(E).
In determining “the nature, amount and duration of an award,” the court must consider
twelve specific statutory factors as well as any other concern “necessary to consider the equities
1
Subsection B of Code § 20-107.1 eliminates the trial court’s discretionary authority to
award spousal support in cases of adultery under Code § 20-91(A)(1) absent a showing of
manifest injustice “based upon the respective degrees of fault during the marriage and the
relative economic circumstances of the parties.” Congdon, 40 Va. App. at 263, 578 S.E.2d at
837 (quoting Code § 20-107.1(B)).
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between the parties.” Id. Whether to impute income to a spouse seeking support is simply one
component of calculating the “amount” of support under the statutory factors listed in Code
§ 20-107.1(E). Three of the statutory factors deal directly with this concept:
9. The earning capacity, including the skills, education and
training of the parties and the present employment opportunities
for persons possessing such earning capacity;
10. The opportunity for, ability of, and the time and costs involved
for a party to acquire the appropriate education, training and
employment to obtain the skills needed to enhance his or her
earning ability; [and]
11. The decisions regarding employment, career, economics,
education and parenting arrangements made by the parties
during the marriage and their effect on present and future
earning potential, including the length of time one or both of the
parties have been absent from the job market[.]
Code § 20-107.1(E). While directly relevant to the question of imputation, these specific factors
do not render the more general factors inconsequential. Whether to impute income also depends,
in part, on a conscientious consideration of all factors, including the “standard of living
established during the marriage,” the “duration of the marriage,” and the positive and negative
“contributions, monetary and nonmonetary, of each party to the well-being of the family.” Code
§ 20-107.1(E)(2), (E)(3) & (E)(6).
Husband argues that, notwithstanding the discretionary factors, our caselaw has tightly
synthesized these principles into a statutory preset requiring imputation of income to a spouse
seeking support if he or she has provable earning capacity at the time of the divorce. He cites
Srinivasan v. Srinivasan, 10 Va. App. 728, 734, 396 S.E.2d 675, 679 (1990), for the proposition
that a spouse has a presumptive duty to go to work following a divorce if he or she had provable
earning capacity. This assertion comes from dictum in Srinivasan that “one who seeks spousal
support is obligated to earn as much as he or she reasonably can to reduce the amount of the
support need.” Id. (citing Baytop v. Baytop, 199 Va. 388, 395, 100 S.E.2d 14, 19 (1957)
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(imputing income where wife for “many years” had “earned a salary that is ample to maintain
her in the station in life to which she has been accustomed”)). 2
Our holding in Srinivasan, however, directly refutes husband’s view. In Srinivasan, the
trial court imputed income to a wife based upon her Ph.D. and her prior working experience as a
college professor. We reversed the trial court because it failed to take into account that the
unemployed wife, “at the time of divorce, was leading the life style she was accustomed to
during the marriage” and was thereafter “entitled to a reasonable time to secure employment.”
Id. at 735, 396 S.E.2d at 679 (emphasis added). “Thus, the trial court should not have decided,
under the present circumstances, as a matter of law, that the wife was not entitled to support.”
Id. at 735, 396 S.E.2d at 679-80.
Neither Srinivasan nor any other Virginia case has held that, for purposes of calculating
spousal support, a stay-at-home spouse capable of working must go to work immediately after
the divorce trial or face a judicially imposed imputation of income. To the contrary, Virginia
cases imputing income (including Baytop, cited by Srinivasan) all involved spouses who worked
during the marriage but, sometime after separation, either accepted a job beneath their earning
capacity or stopped working altogether. See, e.g., Baytop, 199 Va. at 393, 100 S.E.2d at 18
(imputing income to spouse who worked during marriage and quit her employment “[s]ometime
prior to the trial”); Butler, 217 Va. at 197, 227 S.E.2d at 690 (imputing income to spouse whose
earning capacity permitted him to “double his income” by taking a different job); O’Hara v.
2
In his appellate brief, husband also discusses in considerable detail our unpublished
panel decision in McKee v. McKee, No. 0739-07-1, 2008 Va. App. LEXIS 51 (Jan. 29, 2008).
Unpublished opinions, of course, have no precedential value and thus do not implicate the
interpanel accord doctrine. See generally Congdon, 40 Va. App. at 265, 578 S.E.2d at 838
(describing interpanel accord doctrine applicable to published opinions). That conclusion is all
the more secure here given that, sitting en banc, we vacated the McKee panel opinion and
rejected its reasoning on the issue of spousal support. McKee v. McKee, 52 Va. App. 482, 664
S.E.2d 505 (2008) (en banc).
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O’Hara, 45 Va. App. 788, 798, 613 S.E.2d 859, 864 (2005) (affirming imputation of income
based upon “wife’s income over the past several years” that ended after she was “terminated” by
her employer).
In this case, the trial court heard evidence on many of the Code § 20-107.1(E) factors as
it applied to this marriage of nearly twenty-five years. Except for a brief period when she helped
husband at his office, wife had been a stay-at-home mother of two children based upon an
understanding she and husband had during the marriage. At the time of the divorce trial, her
youngest boy was finishing up his senior year of high school and she wanted to stay home until
the boy left for college. In addition, while not incapable of working outside the home, wife
suffers with a congenital heart condition counseling caution and the need to avoid “at risk”
employments. Added to these concerns is the fact that her formal education went no further than
a high school degree.
Based upon this evidence, the trial court held: “It would not be equitable for the court
now to . . . impute income to her at this time.” In doing so, the court carefully limited its ruling
to the conditions existing at the time of the final divorce decree, leaving open the possibility of
recalibrating the support award at some later date as conditions change. See generally McKee,
52 Va. App. at 489-93, 664 S.E.2d at 509-11; Stubblebine, 22 Va. App. at 723, 473 S.E.2d at 81
(recognizing that spousal support awards must be made “upon the circumstances disclosed by the
evidence at the time of the award” (citation omitted)); Theismann v. Theismann, 22 Va. App.
557, 573, 471 S.E.2d 809, 817 (affirming a finding that “although Mrs. Theismann would be able
to reenter the work force at a later time, her absence from the workforce and the ‘emotional
drain’ resulting from the breakup of her marriage made it inappropriate to impute income at this
time”), aff’d, 23 Va. App. 697, 479 S.E.2d 534 (1996) (en banc).
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Spousal support determinations typically involve fact-specific decisions best left in the
“sound discretion” of the trial court. McKee, 52 Va. App. at 489, 664 S.E.2d at 509 (quoting
Blackburn v. Michael, 30 Va. App. 95, 102, 515 S.E.2d 780, 784 (1999)). A trial court’s
decision “on this subject will not be reversed ‘unless there has been a clear abuse of discretion.’”
Congdon, 40 Va. App. at 262, 578 S.E.2d at 836 (citation omitted). “When dealing with
discretionary decisions, only ‘when reasonable jurists could not differ can we say an abuse of
discretion has occurred.’” Robbins v. Robbins, 48 Va. App. 466, 482, 632 S.E.2d 615, 623
(2006) (citation omitted). No such showing has been made here. “In this case, credible reasons
supported the trial judge’s decision that imputation of income was not appropriate, and no abuse
of discretion occurred.” Sargent v. Sargent, 20 Va. App. 694, 704, 460 S.E.2d 596, 601 (1995)
(affirming trial court’s decision not to impute income to a wife working below her potential as
teacher’s aide, the job she held most recently during the marriage). We thus affirm the trial
court’s decision to award spousal support without imputing income to wife.
B. CALCULATION OF HUSBAND’S INCOME
Husband also claims the trial court abused its discretion in accepting the wife’s expert
testimony of husband’s income from his professional corporation. That income calculation,
husband argues, includes an “improper adjustment applied by the wife’s expert” to the corporate
“wages” to the two children. Appellant’s Br. at 24. As husband’s expert conceded, however, the
adjustment was proper because husband’s claimed business expense was improper. From the
start, husband intended the alleged wages to be a gift. No evidence suggested the children were
bona fide employees or that they earned the “wages” husband deducted as a business expense.
Suffice it to say, the trial court had no obligation to base its spousal support calculation in any
way upon husband’s unconventional accounting practices.
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C. AWARD OF APPELLATE FEES
Both husband and wife seek an award of attorney fees incurred on appeal. “The rationale
for the appellate court being the proper forum to determine the propriety of an award of
attorney’s fees for efforts expended on appeal is clear. The appellate court has the opportunity to
view the record in its entirety and determine whether the appeal is frivolous or whether other
reasons exist for requiring additional payment.” O’Loughlin v. O’Loughlin, 23 Va. App. 690,
695, 479 S.E.2d 98, 100 (1996).
We summarily reject husband’s request, given that he did not prevail on either of his two
assertions on appeal and necessarily cannot be a candidate for an award of appellate fees. See
Rogers v. Rogers, 51 Va. App. 261, 274, 656 S.E.2d 436, 442 (2008) (denying attorney fees to
non-prevailing party, citing Smith v. Smith, 43 Va. App. 279, 291 n.6, 597 S.E.2d 250, 256 n.6
(2004)).
We grant in part wife’s request for appellate fees. We view husband’s second argument
(challenging the trial court’s calculation of his income) as wholly meritless, an assertion not
fairly debatable under any reasonable construction of the record or the governing legal
principles. We have no reluctance imposing fees in such circumstances. See, e.g., Klein v.
Klein, 49 Va. App. 478, 483, 642 S.E.2d 313, 316 (2007); Miller v. Cox, 44 Va. App. 674,
688-89, 607 S.E.2d 126, 133 (2005). We view husband’s first argument (advocating an
imputation of income to wife) as erroneous but nonetheless fairly debatable. We deny wife’s
request for fees as to this issue.
We remand this case to the trial court to award wife all attorney fees associated with her
defense of husband’s second argument. We accept that mathematical certitude is an illusory goal
when attempting to segregate legal fees between discrete arguments. See generally Hensley v.
Eckerhart, 461 U.S. 424, 436-37 (1983) (recognizing that while “no precise rule or formula”
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exists for such determinations a fee request “should not result in a second major litigation”). On
remand, we direct the trial court to determine a reasonable division of labor between the issues
argued on appeal and to make a partial fee award based upon this determination.
III.
In sum, we find no error in the trial court’s spousal support award to wife. Neither the
decision to decline an imputation of income to wife nor the calculation of husband’s income can
be fairly characterized as an abuse of discretion. We affirm the trial court and remand this case
for a partial award of appellate attorney fees.
Affirmed and remanded.
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